c •.••'... i L-i .'•'
. i -.- • ii/lii Ui i.r, ...i , ;f'-j i - , . 2013KOV 12 L'AZ-kh

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON KAREN JOHNSON, Appellant

STATE OF WASHINGTON, DEPARTMENT OF TRANSPORTATION, Respondent. DIVISION ONE
No. 69046-9- PUBLISHED OPINION

FILED: November 12, 2013 Dwyer, J. — Karen Johnson accepted a Civil Rule (CR) 68 offer of 

### judgment presented by the Washington State Department of Transportation (DOT), settling her claim against DOT for violations ofthe Washington Law 

### Against Discrimination (WLAD).1 After accepting theoffer, Johnson petitioned the trial court for an award ofattorney fees and costs pursuant to the agreement. 

### The trial court awarded attorney fees and costs to Johnson, but firstdeducted 

### time spent on Johnson's unsuccessful administrative claim, time spent and costs accrued after the date of the offer, reconstructed hours, and amounts billed by 

### Johnson's psychologist, Dr. TimothyReisenauer, for time spent on litigationrelated matters. Johnson appeals, asserting that the trial court erred inevery 1 Ch. 49.60 RCW.No. 69046-9-1/2
instance in which itawarded an amount less than that requested. Finding that the trial court did not abuse its discretion by excluding the aforementioned fees and costs, we affirm.
I Karen Johnson was formerly employed as Assistant Regional Human 

### Resources Manager at the Northwest Region ofDOT. Johnson's supervisor at 

### DOT was Corey Moriyama. In June 2008, Johnson submitted an administrative 

### complaint to DOT alleging sex discrimination and retaliation on the part of 

### Moriyama. Johnson retained the law firm ofMann &Kytle, PLLC thefollowing month, and continues to retain the firm on appeal. DOTclosed the investigation 

### into Johnson's allegations ofdiscrimination in December 2008 and notified her of its adverse decision in January 2009. 

### In September2008, Johnsonwent onmedical leavefrom herposition at DOT. Johnson's psychologist, Dr. Reisenauer, diagnosed herwith posttraumatic stress disorder (PTSD), depression, and anxietycaused by her experiences 

### working under Moriyama's supervision at DOT. In November 2008, Dr. Reisenauer provided a Family and Medical Leave Act (FMLA) certification to DOT, stating that Johnson's "condition continues to not allow her toreturn to work without it seriouslyjeopardizing herhealth." In May 2009, Dr. Reisenauer 

### wrote afollow-up letterto DOT, recommending thatJohnson remain offwork until November 11, 2009. On July 10, 2009, Dr. Reisenauer completed a DOT 

### disability medical questionnaire, stating thatwhile Johnson wascapable of performing theessential functions ofanAssistant Regional Human Resources
-2-No. 69046-9-1/3 Manager, any return to the DOT would likely retrigger her PTSD symptoms. Based on these reports from Dr. Reisenauer, DOT disability-terminated Johnson
on July 23, 2009. Johnson appealed her disability-termination to the Personnel Resources Board (PRB) on August 6, 2009. In her appeal, Johnson alleged that DOT'S decision to disability-terminate her was done in retaliation for her reporting 

### discrimination by Moriyama and that DOT failed to reasonably accommodate her when it did not attempt to find a position for her at another state agency. On 

### February 18, 2010, the PRB found that DOT had no duty to search for positions at other state agencies and denied Johnson's appeal. 

### On July 7, 2010, Johnson filed a complaintfordamages and injunctive reliefagainst DOT, alleging that DOT violated the WLAD bydiscriminating 

### against her on the basis of age, sex, and disability. Dr. Reisenauerregularly consulted with counsel for Johnson throughout the course of litigation and 

### preparedsupporting documentation for Johnson's response to DOT's motion for a CR 35 examination. However, Dr. Reisenauer was neither retained nor listed

as an expert witness. 

### On October 5, 2011, DOTtendered to Johnson and filed withthe court a CR 68 offer ofjudgment. The offer states, in relevant part: Under Civil Rule 68, Defendant Department of 

### Transportation, State ofWashington offers to allow Plaintiff, Karen Johnson, to take judgment against the State of Washington in this 

### matter pursuant to RCW Ch. 4.92, whichjudgment shall be Three Hundred and Fifty Thousand dollars ($350,000). Additionally, Defendant State ofWashington hereby offers to pay Karen Johnson's awardable costs and reasonable attorney's fees accruedNo. 69046-9-1/4
in this lawsuit up to the date/time of this Offer, which sum shall be determined by the King County Superior Court inthe event that counsel for the parties cannot agree within 10 days of Plaintiff's timely acceptance. Plaintiff's claimed costs and fees shall be 

### substantiated by billing records attached to Plaintiff's acceptance of this Offer detailing the nature and date ofthe work performed and hours accrued. 

### Johnson unequivocally accepted the offer ofjudgment on October 17, 2011. As requested, Johnson submitted her counsel's billing records along with her acceptance. 

### On January 20, 2012, Johnson petitioned the court for an award of 

### attorneyfees and costs, which she later amended to comply with the court'sfiling 

### requirements.2 Johnson also submitted modified billing records, which included reconstructed time that was not contained in the October 17 record. DOT filed a 

### response to Johnson's petition on February 8, 2012, towhich Johnson replied on February 16, 2012. 

### On March 26, 2012, the trial court submitted a letter to both parties, setting forth the following rulings: 

### (1) The reasonable hourly ratefor Ms. Mann and Mr. Kytle is $425.00; for Mr. Rose $225; for their paralegal $125.00; 

### (2) Plaintiffis notentitled to fees for hours expended after October 5, 2011 pursuant to the terms of the offer of judgment. Guerrero v. Cummings, 70 F.3rd 1111, 1113 (9th Cir. 1995); 

### (3) Plaintiffisonly entitled [to] fees based on hours that were contemporaneously billed. Mahlerv. Szucs, 135Wn.2d 398, 434(1998). 

### (4) Plaintiffisentitled to fees for all hours expended on thiscase through October 5, 2011, with the exception of time spent on her administrative challenge to her transfer to another state agency. 

### 2Johnson's original petition exceeded the maximum numberofpages authorized by local court rules. -4-No. 69046-9-1/5 (5) Plaintiff is entitled to a multiplier of 1.3. (6) Plaintiffis entitled to reimbursement for all costs, with the exception of Dr. Reisenauer's bills for work performed before June 17, 2011 as her treating physician. Dr. Reisenauer did not submit a cost billthat segregated the costs incurred as an expert witness rather than as a treating physician. His costs are therefore not recoverable. Johnson submitted a motion for reconsideration on April 5, 2012. Attached to this motion were separate billings for Dr. Reisenauer's clinical and nonclinical hours, with costs for the nonclinical hours totaling $41,663.56. After receiving a response from DOT, the trial court filed its findings offact and conclusions of law, which appeared to be unaffected by the information contained in the motion for
reconsideration. The trial court calculated a "lodestar" amount for attorney fees and found that a reasonable rate for partners Ms. Mann and Mr. Kytlewas $425, a reasonable rate for associate Mr. Rose was $225, and a reasonable rate for their 

### paralegal was $125. The trial court found that the reasonable number of hours expended were 170.55 for Ms. Mann, 19.44 for Mr. Kytle, 41.27 for Mr. Rose, and 15.06 for the paralegal. Citing Chuonq Van Pham v. City ofSeattle, 159 Wn.2d 527, 538, 151 P.3d 976 (2007), the trial court determined that 27.4 partner hours and 25.18 associate hours spent on Johnson's administrative claim were 

### segregable and thus not recoverable. Citing Guerrero v. Cumminqs, 70 F.3d 1111, 1113 (9th Cir. 1995), the trial court found that the offer ofjudgmentwas not 

### ambiguous and, therefore, the 59.76 partner hours, 5.85 associate hours, 4.08 paralegal hours, and $7,438.91 in costs expended or incurred after October 5,
2011 were not recoverable.No. 69046-9-1/6
In addition, the trial court determined that 58.54 reconstructed partner hours and .15 reconstructed paralegal hours were not reliably proved and, thus,
were not recoverable. The trial court expressed skepticism that counsel could reliably recall time spent more than 18 months prior to the submission, where no 

### contemporaneous records ofthe work or the time spent were generated, as well
as noting counsel's failure to explain why some correspondence hours were not accounted for when other correspondence hours had been included inthe initial 

### billing. However, the trial court applied a 1.3 multiplier to the lodestarfigure based on the high riskplaintiff's counsel took inaccepting the case, the difficulties presented byJohnson's mental health issues, and the sizeable

resources available to DOT to defend the case. 

### On the issue ofcosts, the trial court found that all costs before October 5, 

### 2011, except forDr. Reisenauer's bills, were recoverable. The trial court determined that Dr. Reisenauer's bills should properly be considered medical 

### damages, as he was Johnson's treating physician, and was neither retained nor listed as an expert witness. Therefore, based upon the court'sfindings, Johnson 

### was awarded $119,448.20 in attorney fees and $12,034.38 in costs.3 Johnson appealedfrom thetrial court's determination of reasonableattorney fees and costs, asserting that thetrial courterred in every instancein which it reduced the
amount claimed by her.

3DOT has paidboth the amount of the underlyingjudgmentand all fees and costs 

### awarded by thetrial court. Additionally, DOT paid Dr. Reisenauerfor his time athis deposition, and paid him a $234.34 fee for his prerelease editorial review ofJohnson's medical records.No. 69046-9-1/7



### Johnson contends that she is entitled to recover attorney fees for time spent on her administrative claim because, she avers, the claims were nonsegregable. This is so, she contends, because the claims were based on a
common core offacts and legal issues. Thus, Johnson asserts that the trial court erred by excluding time spent on the administrative claim from the recoverable 

### hours.4 We disagree. This court will not disturb a trial court's decision denying, granting, or calculating an award of attorney fees absent an abuse of discretion. Roats v. Blakelv Island Maint. Comm'n, Inc., 169 Wn. App. 263, 283-84, 279 P.3d 943 (2012). "A trial court abuses its discretion if its order is manifestly unreasonable or is based on untenable grounds." Marina Condo. Homeowner's Ass'n v. Stratford at Marina, LLC, 161 Wn. App. 249, 263, 254 P.3d 827 (2011). Under CR 68, "a party defending against a claim may serve upon the adverse party an offer to allowjudgment to be taken against him for the money or 

### property or to the effect specified in his offer, with costs then accrued." The terms ofthe offer control the extent to which attorney fees and costs may be 

### awarded. Guerrero, 70 F.3d at 1114.5 Here, the terms of the offerstate that
4DOT contends thatthis issue has beenwaived, because itwasraised for thefirst time in a motion for reconsideration. As a factual matter, this is incorrect. Johnson's petition for attorney fees and costs argued that the administrative claim and tort claim were "based on the same core of facts and related or overlapping legal theories, and all were part of the basis for settlement." Areworded argument is not equivalent to a new argument. We therefore address the merits of Johnson's claim. 

### 5Washington's CR 68 is virtually identical to Federal Rule ofCivil Procedure 68. Lietz v. Hansen Law Offices. P.S.C. 166 Wn. App. 571, 580, 271 P.3d 899 (2012). Thus, in the absence ofcontrolling state authority, Washington courts look to federal interpretations of the equivalentNo. 69046-9-1/8 

### DOT offered to pay Johnson's "awardable costs and reasonable attorney's fees accrued inthis lawsuit up to the date/time of this Offer." Therefore, Johnson may 

### recover all attorney fees and costs that are awardable in association with the underlying claim up to the date ofthe offer. The WLAD allows forthe recovery of"reasonable attorneys' fees" in connection with the suit. RCW49.60.030(2). The party seeking fees has the 

### burden ofproving thatwhich constitutes "reasonable fees." Mahler v. Szucs, 135 Wn.2d 398, 433-34, 957 P.2d 632, 966 P.2d 305 (1998), overruled on other grounds by Matsvuk v. State Farm Fire &Cas. Co., 173 Wn.2d 643, 658-59, 272 

### P.3d 802 (2012). In calculating the amount of reasonable attorneyfees, a court 

### using the "lodestar" method "must limitthe lodestartohours reasonably 

### expended" on the successful claims. Bowers v. TransamericaTitle Ins. Co.. 100 Wn.2d 581, 597, 675 P.2d 193 (1983). Hours are "reasonably expended" ifthey 

### arespenton claims "having a 'common core offacts and related legal theories.'" ChuonqVan Pham, 159Wn.2d at 538 (quoting Martinez v. City ofTacoma, 81 

### Wn. App. 228, 242-43, 914 P.2d 86(1996)). "The court should discount hours spenton unsuccessful claims, duplicated orwasted effort, orotherwise unproductive time." Chuonq Van Pham, 159Wn.2d at 538. In this case, thetrial court applied the "lodestar" method and determined 

### that27.4 partnerhours and25.18 associatehours were not recoverable because 

### they were spentexclusively on Johnson's unsuccessful administrative claim.
rule. Lietz. 166Wn. App. at580; Hodae v. Dev. Servs. ofAm., 65 Wn. App. 576, 580, 828 P.2d 1175(1992). -8-No. 69046-9-1/9 Nevertheless, Johnson maintains that these hours were nonsegregable from her 

### WLAD claim, as they involved a common core of facts and related theories. To the contrary, the trial court found that the hours were segregable, as they did not involve a common core offacts and legal theories. The trial court explained: Plaintiff's claims ofgender and age discrimination, retaliation and 

### negligence related to her treatment by her supervisor inthe Northwest Region from June 2007 to August 2008. The accommodation claim, by contrast, focused on the Department's 

### July 2009 decision by the Department's HQ unit, notplaintiff's supervisors. 

### The trial court did not abuse its discretion by excluding hours spent on Johnson's unsuccessful administrative claim from the amount of attorney fees awarded.

Johnson contends that she is entitled to recover attorney fees for time 

### spent on herclaim after October5, 2011. This is so, she asserts, both because 

### public policy demands such an award and because the course ofdealing between the parties establishes that such fees and costs were intended to be included in the offer of judgment. Thus, Johnson posits, thetrial court erred when itexcluded all time and costs incurred after October 5, 2011 from the
amount awarded. We disagree. 

### ACR 68offer operates as a contract, in that the terms oftheoffercontrol the extent towhich attorney fees and costs may be awarded. Guerrero, 70 F.3d

6While Johnson cites to Steele v. Lundgren. 96 Wn. App. 773, 982 P.2d 619 (1999), as 

### supporting her assertion that hours spenton her administrative claim arerecoverable, Johnson 

### provides no explanation asto whythis is so, instead relying on apurelyfactual analysis. The trial courtin thatcase found that the claimsdid involve a common core of facts and, as such, that decision does not assist Johnson here. Steele, 96 Wn. App. at 783.No. 69046-9-1/10

at 1114. A waiver of attorney fees and costs must be unambiguous in order to be binding. Guerrero, 70 F.3d at 1113. Here, the offer stated that DOT would pay Johnson's "awardable costs and reasonable attorney's fees accrued in this lawsuit up to the date/time of this Offer." The trial court found that this language


### was unambiguous and, therefore, ruled that allfees and costs incurred after October 5, 2011 were not recoverable. Johnson makes two contentions as to why the trial court erred by so 

### ruling. First, Johnson asserts that the denial of attorney fees and costs incurred in the course oflitigating an entitlementto fees violates public policy. Second, Johnson contends that the course ofdealing between the parties establishes that DOT intended the offer to include fees and costs incurred in litigating the fee 

### dispute, notwithstanding the language of the offer. These arguments are unavailing. Johnson's first contention is that the denial of attorney fees and costs 

### incurred while litigating an entitlement to fees violates the public policy behind the 

### WLAD, which is to be liberally construed.7 However, our SupremeCourt has recognized that theWLAD's liberal construction is notwithout limits. Chuonq Van Pham. 159 Wn.2d at 537. Johnson's contention was squarely addressed by the Ninth Circuit in Guerrero. As in this case, the plaintiffs in Guerrero accepted

7As a general rule, fees incurred while litigating anentitlementtofees arerecoverable under remedial statutes such as the WLAD. See Fisher Props.. Inc. v. Arden-Mavfair, Inc., 115 Wn.2d 364, 378, 798 P.2d 799 (1990); Daly v. Hill. 790 F.2d 1071, 1080 (4thCir. 1986) ("Time 

### spentdefending entitlementto attorney's fees isproperly compensable in a § 1988 fee award."); Copeland v. Marshall, 641 F.2d 880, 896 (D.C. Cir. 1980) ("[T]ime spent litigating the fee request isitselfcompensable" in Title VII feeawards.); see alsoSteele, 96Wn. App. at781.
-10-No. 69046-9-1/11


### a Rule 68 offer on their civil rights claims. 70 F.3d at 1112. Using language nearly identical to the language used in this case, the offer in Guerrero limited fees and costs to those "incurred by this plaintiff prior to the date of this offer." 70 F.3d at 1113. As Johnson does herein, the Guerreros contended that "disallowing post-offer fees undermines the attorney's fees policy in civil rights actions." Guerrero, 70 F.3d at 1113. This was so, the Guerreros asserted, because disallowing postofferfees puts plaintiffs in an impossible predicament: either reject an offer of judgment which is reasonable as to the damages but leaves open the attorney's fees, and with the rejection risk the fee-shifting penalties in Rule 68, or accept the Rule 68 offer which cuts off further entitlement to fees no matter how difficult it is to resolve the amount ofthe pre-offer fee. They also suggest that forcing plaintiffs to litigate the reasonableness offees, yet depriving them offees on fees, dilutes the attorney's fees paid for work done on the underlying case. Guerrero, 70 F.3d at 1113. Nevertheless, the Ninth Circuit found that "the plain language ofthe 

### settlement offers limitsattorney's fees to those accrued prior to the date ofthe offers," and as such, "the district court did not err in finding that the Guerreros' 

### acceptance clearly and unambiguously waived attorney's fees incurred thereafter." Guerrero, 70 F.3d at 1113. The court addressed the Guerreros' public policy arguments as follows: 

### These arguments fail in light ofthe Supreme Court's opinion in Marek v. Chesny, 473 U.S. 1, 10-11, 105 S. Ct. 3012, 3017-18, 

### 87 L. Ed. 2d 1 (1985). As the Court explained, "Merelysubjecting civil rights plaintiffs to the settlement provision of Rule 68 does not curtail their access to the courts, or significantly deter them from 

### bringing suit." \± at 10, 105 S. Ct. at 3017. Moreover, while Rule 68 "will require plaintiffs to 'think very hard' about whether
-11

-No. 69046-9-1/12
continued litigation is worthwhile!,]" this effect of Rule 68 "is in no sense inconsistent with the congressional policies underlying §1983 and §1988." Id, at 11, 105 S. Ct. at 3017. Thus, there are no reasons of policy that preclude the cutting off offees and costs at the point a Rule 68 offer is made and accepted. Guerrero, 70 F.3d at 1113-14. We find this reasoning equally applicable to Johnson's claim. Nevertheless, Johnson maintains that Lasswell v. City of Johnston City, 436 F.Supp.2d 974 (S.D. III. 2006), dictates a different result. To the contrary, in Lasswell. the Rule 68 offer provided for recovery of "costs then accrued." 436 

### F.Supp.2d at 981. The Lasswell court found that, unlike the offer inGuerrero, the 

### phrase "costs then accrued" was ambiguous. 436 F.Supp.2d at 981. As Johnson's offer was not ambiguous, Lasswell does not apply here. Johnson also asserts that restricting awardable fees to only those 

### available under 42 U.S.C. § 1988 would render the WLAD superfluous. We disagree. The WLAD specifically provides that 

### [a]ny person deeming himselfor herselfinjured by any act in violation of this chapter shall have a civil action
... to recover the 

### actual damages sustained by the person . .. togetherwith the cost of suit including reasonable attorneys' fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.). 

### RCW 49.60.030(2). The WLAD primarily differs from § 1983 in the scope of its 

### protection.8 Martini v. Boeinq Co., 137Wn.2d 357, 971 P.2d 45 (1999), cited by

8The WLAD includes under its protection numerous classes notfully protected by federal law: "families with children," "marital status," "sexual orientation," "honorably discharged veteran ormilitary status," and"the use ofatrained dog guide orservice animal by a person with a disability." RCW 49.60.010.
-12-No. 69046-9-1/13 Johnson, is inapposite. In Martini, our Supreme Court declined to limit the 

### availability ofback pay as a component ofdamages under the WLAD. Martini. 137 Wn.2d at 372-75. The court declined to apply Title VII case law because the 

### remedy provisions inTitle VII and the WLAD were "radically different." Martini. 137 Wn.2d at 375; see also Lodis v. Corbis Holdings. Inc.. 172 Wn. App. 835, 

### 849, 292 P.3d 779 (2013) ("Where the WLAD provisions are 'radically different' fromfederal law, Washington courts must diverge from federal statutory 

### interpretations."). Here, however, there is no radical difference between federal 

### law andWashington law. Rather, "CR 68 isvirtually identical to Federal Rule of Civil Procedure 68." Lietz v. Hansen Law Offices. P.S.C. 166 Wn. App. 571, 

### 580, 271 P.3d 899 (2012). We have previously held that federal law is 

### informative for construing CR 68 offers of judgment. Hodge v. Dev. Servs. of 

### Am., 65Wn. App. 576, 580, 828P.2d 1175 (1992): see alsoLietz, 166Wn. App. 

### at580. Accordingly, there isno public policy reason toanalyze theCR 68offer made in this case differentlythan the offer made in Guerrero. Johnson next maintains that extrinsic evidence establishes that DOT 

## misled herby its priorcourse ofdealing.9 Thetrial courtconsidered this argument and made afactual finding that DOT's "position is consistentwith the representations defense [DOT] counsel made to plaintiff's [Johnson] counsel." 9DOT contends that this argumenthas beenwaived, as Johnson raised itfor thefirst time in a motion for reconsideration. As a factual matter, this is incorrect. InJohnson's 

### supplemental authorities in supportofherpetitionfor attorneyfees and costs, Johnson asserted that acourse ofdealing existed between the parties thatestablished that theofferof judgment included fees incurred while litigating the feeaward. Johnson alsofiled a supplemental 

### declaration ofMary Ruth Mann, which made the exactargumentthat DOT now claims Johnson did not make until hermotion forreconsideration. These two documents werefiled onMarch 26, 2012, the same daythat thetrial court issuedits letter ruling on fees and costs.
-13-No. 69046-9-1/14
This finding is supported by the record. Rather than establishing a course of 

### dealing that contemplated the inclusion offees incurred after the date ofthe offer, the communications between the parties' counsel establish the exact opposite— that DOT did not intend for the offer ofjudgment to be construed in relation to offers in other cases. In an e-mail to Mann on October 17, 2011, counsel for 

### DOT stated that, in regard to the issue offees incurred during a fee dispute, "my 

### position would be that, as in other litigation contexts, the American rulewould 

### apply and the parties would bear their own costs. Please do notconsideryour statementregarding recoverable costs in a fee dispute as beinga term ofthis settlementoffer." (Emphasis added.) After Mann insisted that such fees were recoverable as a rule, counsel for DOT responded, "I am not willing to agree on 

### behalfofmy clientto a 'rule' in thissettlement offer The best thatIcan do at thistime is rest on the plain language ofthe settlementoffer and ofthe offer of 

### judgment." As therecord shows that DOT did not intend forfees incurred during 

### afee dispute to bepartofthe offer,10 Johnson failed to establish thatthere was a contrary course ofdealing thatexisted between theparties. The trial courtdid not abuseits discretion by sofinding.11 Neither public policy nora course ofdealing theory supportJohnson's
10 Or, indeed, for anyfees incurred afterthe date oftheCR 68offerto berecoverable. 11 Moreover, Johnson's contention is notconsistentwith the remedy she seeks. Ifthere 

### was no agreementon the inclusion offees expended while litigating fees, asJohnson contends, the resultwould be that no contract ever existed between the parties. The proper remedy inthat instance isrescission. However, Johnson did notin the trial court and does notnow seek rescission and remand fortrial. Instead, she has accepted the benefits of the agreement—by 

### accepting payments from DOT—while seeking to obtain additional fees beyond thatprovided for in the CR68 offer. Johnson's attemptto unilaterally modify the offer of judgmenthas no basis in law. -14-No. 69046-9-1/15
contention that she should be awarded attorney fees and costs billed after October 5, 2011. The trial court did not err by determining that these fees were
not recoverable.
IV Johnson next contends that she is entitled to recover attorney fees for reconstructed hours submitted at the time of her petition. Thus, Johnson asserts, the trial court erred when itexcluded 58.54 partner hours and .15 paralegal hours from the recoverable hours. We disagree. 

### The party seeking fees has the burden of proving that which constitutes reasonable fees. Mahler, 135 Wn.2d at 433-34. "Counsel must provide 

### contemporaneous records documenting the hours worked." Mahler, 135Wn.2d at 434. Although such records need not be exhaustive, any reconstructed hours "should be credited onlyifreasonable under the circumstances and supported by other evidence such as testimony or secondary documentation." FrankMusic Corp. v. Metro-Goldwin-Maver Inc.. 886 F.2d 1545, 1557 (9th Cir. 1989); accord 

### Mahler. 135 Wn.2d at 434-35 ("Courts should not simplyaccept unquestioningly fee affidavits from counsel."). 

### In this case, the trial court applied the "lodestar" method and determined 

### that 58.54 partner hours and .15 paralegal hours were not recoverable because the evidence of theirvalidity was unreliable. In its numberedfindings offact, the trial court explained: 

### 22. The court is skeptical that anyone can recollect how 

### much time she spent on correspondence more than 18 months 

### priorto the reconstruction ofthe time. Thisdifficulty likely explains
-15-No. 69046-9-1/16 why the same amount oftime was assigned to all three letters

- assuming the second and third letters are not duplicative. Finally, Plaintiff's counsel does not explain why many entries in her initial billings contained contemporaneous records for correspondence, and yet failed to account for time spent on other correspondence. 23. The court does not question Plaintiff's counsel's good faith. However, itfinds that the reconstructed time is wholly unreliable.
. .. The trial court also noted that Johnson's counsel did not keep informal records of the reconstructed hours. It is clearfrom the trial court's findings that Johnson did 

### not support her reconstructed hours with sufficientevidence and thus failed to meet her burden to prove the reliability of the reconstructed hours that she 

### sought to be awarded. The trial court did notabuse itsdiscretion byexcluding from its calculation ofthe lodestar amount hours that were not proved to its 

### satisfaction to have been worked.12
V Johnson's final contention is that she is entitled to be awarded sums to 

### compensate herfor costs billed to her by hertreating physician, Dr. Reisenauer. Thus, Johnson asserts that the trial court erred when it excluded the amount of Dr. Reisenauer's bills from the recoverable costs awarded. We disagree.

12 Moreover, even ifJohnson had met her burden ofproof, the reconstructed hours may not have been recoverable under the terms of the offer of judgment. The offer of judgment stated, "Plaintiffs claimed costs and fees shall be substantiated bybilling records attached to Plaintiffs acceptanceofthisOfferdetailing thenature and date ofthework performed andhours accrued." Johnson's reconstructed hours were not included in the billing statement she submitted toDOT at thetime of her acceptanceof theoffer. (Indeed, they did notappearuntil shefiled her 

### petition forfeesand costs with the court.) As the trial courtfound thatJohnson failed tomeether burden ofproofwith respectto thereconstructed hours, itwasnot necessary for itto considerthis 

### argument. However, the argument provides asufficientalternative basis to affirm the trial court's ruling. -16-No. 69046-9-1/17
In WLAD litigation, costs associated with expert witnesses are recoverable 

### bytheprevailing party.13 RCW 49.60.030(2); Xienq v. Peoples Nat'l Bank of Wash.. 120 Wn.2d 512, 528, 844 P.2d 389 (1993) ("Thus, as to employment discrimination claims brought under RCW 49.60.180(3) after the enactment of the amendment to § 2000e-5(k) [ofthe United States Civil Rights Act of 1964] on November 21, 1991, an award of expert witness fees is clearly authorized by RCW 49.60.030(2)."). However, Dr. Reisenauer was not an expert witness. Rather, Johnson contends that "time of medical providers spent responding to 

### legal matters" is recoverable as a litigation cost. Johnson relies on CR 26(b)(7) and RCW 49.60.030 for this contention. Neither the court rule nor the statute 

### supportJohnson's assertion.14 DOT contends, and the trial court held, that Dr. Reisenauer's costs are 

### medical damages, and thus are covered as part of the $350,000 awarded under the offer of judgment. We disagree. Damages are amounts incurred by the 

### plaintiffas a result ofthe claimed injury. Dr. Reisenauer's bills are for nonclinical hours, which would not have been incurred inthe absence of a lawsuit. 

### Therefore, it is incorrect to characterize Dr. Reisenauer's billed hours as medical
13 RCW 49.60.030(2) reads, "Any person deeminghimselfor herselfinjured by any act in violation of this chapter shall have a civil action
... to recover the actual damages sustained by the person . . . togetherwith the cost of suitincluding reasonable attorneys' fees or any other appropriate remedy authorized bythis chapter or the United States Civil Rights Act of1964 as amended, or the Federal FairHousing Amendments Actof 1988(42 U.S.C. Sec. 3601 et seq.)." 14 CR26(b)(7) reads, "The party seekingdiscovery from a treating health care provider shall pay a reasonable feefor thereasonable time spentin responding to thediscovery." This statuteprovides fortherecovery of fees by physicians for responding todiscovery; itdoes not extend to fact-witnessespreparing fortrial. DOT claimsitpaid forDr. Reisenauer's deposition; Johnson does not dispute this. Dr. Reisenauer's billing statements indicate similarly. To the extent DOT sought discovery from Dr. Reisenauerrelated to theadministrative proceeding, such amounts would not be compensable in this action for the reasons stated.
-17-No. 69046-9-1/18 damages. Dr. Reisenauer's billed hours are ofthe type typically billed by an expert witness. Johnson's assertion, then, presents a broader question of public policy: given the current nature ofthe medical profession, should the time offact witness physicians who are not retained as expert witnesses be compensable, pursuant to this cost-shifting statute, as a litigation cost? Traditionally, underWashington law, lay witness costs are limited to travel expenses and compensation for time spent testifying. RCW 2.40.010. However, Johnson seeks neither of these costs herein. Rather, Johnson requests that her treating physician, a fact witness, be compensated for time spent "responding to legal matters." Reimbursement to lay witnesses for time spent "responding to legal matters" is an issue not widely addressed. The Michigan Court ofAppeals recently addressed the question in Van Elslander v. Thomas Sebold &Assocs., 

### Inc.. 297 Mich. App. 204, 823 N.W.2d 843 (2012). There, the trial court awarded Van Elslander the costs attributed to two witnesses who were never identified as 

### experts.15 Van Elslander. 297Mich. App. at217. On appeal, thecourt held that the trial court had abused its discretion in awarding those costs to Van Elslander,


### as no statutory basis existed for awarding fees to a fact witness. Van Elslander, 297 Mich. App. at 217-18. Moreover, the court found that time spent on "'conferences with counsel for purposes such as educating counsel about expert 

### appraisals, strategy sessions, and critical assessment ofthe opposing party's
15 The nature of the case suggests that these witnesses wereemployed in thehome construction industry. -18-No. 69046-9-1/19 position'" would not be recoverable even inthe instance ofan expert witness. Van Elslander, 297 Mich. App. at 220 (internal quotation marks omitted) (quoting Hartland Twp. v. Kucvkowicz. 189 Mich. App. 591, 599, 474 N.W.2d 306 (1991)). 

### Thus, under Michigan law, costs for a fact witness's time spent "responding to legal matters" are not recoverable. In addition, the Kansas Court ofAppeals, specifically addressing 

### physicians, held that treating physicians who are not retained as expert witnesses are not to be treated differently from other lay witnesses for purposes 

### ofassessing costs. In Grant v. Chappell. 22 Kan. App. 2d 398, 916 P.2d 723 

### (1996), the plaintiffsought costs for a treating physician's appearance in court, in
an amountwell above the statutory allowance, arguing that the statute did not 

### apply totreating physicians. Grant, 22Kan. App. 2d at 400. Thecourt rejected this argument, holding that"the fees treating physicians chargefor their appearance andtestimony attrial may not be assessed against a losing party as costs." Grant, 22 Kan. App. 2d at 400. The logical extension of this holding is 

### that other fees charged bytreating physicians also may not be assessed as costs. Thus, Kansas courts would also not be willing to award costs for a fact witness's time spent "responding to legal matters." 

### Under federal law, costs for fact witnesses are limited by 28 U.S.C. § 

### 1821. Aswith RCW2.40.010, § 1821 contemplates costs for factwitnesses only 

### in connectionwith theirtestimony. 28 U.S.C. § 1821 ($40 per day attendance fee, travel costs, and subsistence costs forovernight stays awardable). Nevertheless, there is a split among the district courts as to whether treating
-19-No. 69046-9-1/20 physicians should be entitled to fees beyond those authorized by § 1821. See generally Baker v. John Morrell & Co.. 263 F.Supp.2d 1161, 1206 (N.D. Iowa 2003) (discussing split in authority); Demar v. United States. 199 F.R.D. 617, 618-19 (N.D. III. 2001) (discussing split in authority). Those courts holding that treating physicians are entitled to fees beyond those authorized by § 1821 do so on the basis that physicians provide an invaluable service to the community and incur substantial overhead costs even while testifying. See Coleman v. Dydula, 190 F.R.D. 320, 323-24 (W.D.N.Y. 1999); Haslett v. Tex. Indus.. Inc.. No. Civ.A. 397-CV-2901D, 1999 WL 354227 at *2 (N.D. Tex. 1999): see also Baker. 263 

### F.Supp.2d at 1206-07 (concurringwith Haslett in dicta). Other courts hold that treating physicians are no differentfrom otherfact witnesses, and thus no 

### exception to § 1821 is warranted. See Demar, 199 F.R.D. at 619-20; Fisherv. Ford Motor Co.. 178 F.R.D. 195, 198-99 (N.D. Ohio 1998). However, one 

### importantfactor distinguishes these cases from the case at hand: in the cases 

### awarding additional costs for treating physicians, the costs were incurred for time spent testifying. See Coleman, 190 F.R.D. at 320 (costs for deposition 

### testimony); Haslett.. 1999WL 354227 at *2 (costs fortrial and deposition 

### testimony).16 CR 26(b)(7) already addresses compensable costsfor treating physicians for timespenttestifying. The fees billed byDr. Reisenauer, however,
were not incurred for time spent testifying. No case authority directly supports the request that Johnson makes herein.
16 Thephysicians in Bakerweredesignated by theplaintiffas expertwitnesses. 263 F.Supp.2d at 1205. Accordingly, the case is inapposite.
-20-No. 69046-9-1/21 Although no case inWashington is directly on point, one case is particularly informative. In Paiva v. Durham Construction Co.. 69 Wn. App. 578, 579, 849 P.2d 660 (1993), the plaintiff's treating physician demanded that he be 

### paid for his deposition at the expert rate of$300 per hour. We refused to grant 

### the physician's request, holdingthat "[professionals who acquire or develop facts 

### not in anticipation oflitigation are not entitled to expert witness fees." Paiva, 69 Wn. App. at 579-80. In so holding, we differentiated between professionals who
are experts in their field and witnesses who are experts forpurposes oflitigation, 

### recognizing that the mere fact of expertise does not automaticallywarrant a 

### professional's treatment as an expertwitness. Paiva. 69Wn. App. at580. The Paiva decision militates against Johnson's present assertion. In the Demar decision, the court articulates why we would be remiss in departing from our decision in Paiva: 

### While physicians certainly have significant overhead costs and a special expertise, so do a myriad of other professions. For instance, should fact witnesses who happen to be engineers, 

### attorneys, accountants orconsultants—professions also with special expertise and significant overhead costs—similarly be allowed more than the statutory fee prescribed by § 1821? Ifthe answer is inthe affirmative, then does § 1821 merely apply to less prestigious professions? 199 F.R.D. at 619. We decline to hold that time spent by a fact-witness treating 

### physician "responding tolegal matters" isrecoverable as aWLAD litigation cost. Johnson has not established an entitlement to appellate relief on this issue.

21No. 69046-9-1/22

Affirmed.

We concur: 

# ^L^y^iJJ

s

22